Find a current event that deals with affirmative action and discuss it here. Be sure to bring one of this week’s readings to bear on the discussion. 200 words.APA Attached are readings and notes
Mosely’s “Affirmative Action: Pro” Excerpts “Affirmative Action: Pro” Excerpts by Albert G. Mosley Conceptual Issues There are many interests that governments pursue – maximization of social production; equitable distribution of rights, opportunities, and services; social safety and cohesion; restitution – and those interests may conflict in vari­ous situations. In particular, governments as well as their constituents have a prima facie obligation to satisfy the liabilities they incur. One such liability derives from past and present unjust exclusionary acts depriving minorities and women of opportunities and amenities made available to other groups… Most critics of preferential treatment acknowledge the applicability of princi­ples of restitution to individuals in specific instances of discrimination. The stron­gest case is where y was as or more qualified than z in the initial competition, but the position was given to z because y was Black and z was White. Subsequently, y may not be as qualified for an equivalent position as some new candidate z, but is given preference because of the past act of discrimination by F that deprived y of the position he or she otherwise would have received. Some critics have suggested that, in such cases, z is being treated unfairly. For z, as the most qualified applicant, has a right not to be excluded from the position in question purely on the basis of race; and y has a right to restitution for having unjustly been denied the position in the past. But the dilemma is one in appearance only. For having unjustly excluded y in the past, the current position that z has applied for is not one that F is free to offer to the public. It is a position that is already owed to y, and is not available for open competi­tion. Judith Jarvis Thomson makes a similar point: suppose two candidates [A and B] for a civil service job have equally good test scores, but there is only one job available. We could decide between them by coin-tossing. But in fact we do allow for declaring for A straightway, where A is a veteran, and B is not. It may be that B is a non-veteran through no fault of his own…. Yet the fact is that B is not a veteran and A is. On the assumption that the veteran has served his country, the country owes him something. And it is plain that giv­ing him preference is not an unjust way in which part of that debt of gratitude can be paid. In a similar way, individual Blacks who have suffered from acts of unjust dis­ crimination are owed something by the perpetrator(s) of such acts, and this debt takes precedence over the perpetrator’s right to use his or her options to hire the most qualified person for the position in question. Many White males have developed expectations about the likelihood of their being selected for educational, employment, and entrepreneurial opportunities that are realistic only because of the general exclusion of women and non-Whites as competitors for such positions. Individuals enjoying inflated odds of obtaining such opportunities because of racist and sexist practices are recipients of an “unjust enrichment.” Redistributing opportunities would clearly curtail benefits that many have come to expect. And given the frustration of their traditional expec­tations, it is understandable that they would feel resentment. But block­ing traditional expectations is not unjust if those expectations conflict with the equally important moral duties of restitution and just distribution. It is a question, not of “is,” but of “ought”: not “Do those with decreased opportunities as a result of affirmative action feel resentment?” but “Should those with decreased opportunities as a result of affirmative action feel resentment?”… Since Title VII [of the Civil Rights Act of 1964] protects bona fide senior­ity plans, it forces the burden of rectification to be borne by Whites who are entering the labor force rather than Whites who are the direct beneficiaries of past discriminatory practices. Given this limitation placed on affirma­tive action remedies, the burden of social restitution may, in many cases, be borne by those who were not directly involved in past discriminatory practices. But it is generally not true that those burdened have not ben­efited at all from past discriminatory practices. For the latent effects of acts of invidious racial discrimination have plausibly bolstered and encouraged the efforts of Whites in roughly the same proportion as it inhibited and discouraged the efforts of Blacks. Such considerations are also applicable to cases where F discriminated against yin favor of z, but the make-whole remedy involves providing compensation to y rather than y. This suggests that y is an undeserving beneficiary of the preferential treatment meant to compensate for the unjust discrimination against y, just as z above appeared to be the innocent victim forced to bear the burden that z benefited from. Many critics have argued that this misappropriation of benefits and burdens demonstrates the unfairness of compensation to groups rather than indi­viduals. But it is important that the context and rationale for such remedies be appreciated. In cases of “egregious” racial discrimination, not only is it true that dis­criminated against a particular Black person y, but F’s discrimination advertised a general disposition to discriminate against any other Black person who might seek such positions. The specific effect of F’s unjust discrimination was that y was refused a position he or she would otherwise have received. The latent (or dispositional) effect of F’s unjust discrimination was that many Blacks who otherwise would have sought such positions were discouraged from doing so. Thus, even if the specific y actually discriminated against can no longer be compensated, F has an obligation to take affirmative action to communicate to Blacks as a group that such positions are indeed open to them. After being found in violation of laws prohibiting racial discrimination, many agencies have disclaimed further discrimination while in fact continuing to do so. In such cases, the courts have required the discriminating agencies to actu­ally hire and/or promote Blacks who may not be as qualified as some current White applicants until Blacks approach the proportion in F’s labor force they in all likelihood would have achieved had F’s unjust discriminatory acts not deterred them. Of course, what this proportion would have been is a matter of speculation. It may have been less than the proportion of Blacks available in the relevant labor pool from which applicants are drawn if factors other than racial discrimi­nation act to depress the merit of such applicants. This point is made again and again by critics. Some, such as Thomas Sowell, argue that cultural factors often mitigate against Blacks meriting representation in a particular labor force in pro­ portion to their presence in the pool of candidates looking for jobs or seeking promotions. Others, such as Michael Levin, argue that cognitive deficits limit Blacks from being hired and promoted at a rate proportionate to their presence in the relevant labor pool. What such critics reject is the assumption that, were it not for pervasive discrimination and overexploitation, Blacks would be equally represented in the positions in question. What is scarcely considered is the possibility that, were it not for racist exclusions, Blacks might be over rather than under represented in competitive positions. Establishing Blacks’ presence at a level commensurate with their pro­ portion in the relevant labor market need not be seen as an attempt to actu­alize some valid prediction. Rather, given the impossibility of determining what level of representation Blacks would have achieved were it not for racist discrimination, the assumption of proportional representation is the only fair assumption to make. This is not to argue that Blacks should be maintained in such positions, but their contrived exclusion merits an equally contrived rectification. Racist acts excluding Blacks affected particular individuals, but were directed at affecting the behavior of the group of all those similar to the victim. Likewise, the benefits of affirmative action policies should not be con­ceived as limited in their effects to the specific individuals receiving them. Rather, those benefits should be conceived as extending to all those identi­fied with the recipient, sending the message that opportunities are indeed available to qualified Black candidates who would have been excluded in the past… Forward-Looking Justifications of Affirmative Action …[Some] have defended preferential treatment but denied that it should be viewed as a form of reparation. This latter group rejects “backward look­ ing” justifications of affirmative action and defends it instead on “forward­ looking” grounds that include distributive justice, minimizing subordination, and maximizing social utility. Thus, Ronald Fiscus argues that backward-looking arguments have dis­torted the proper justification for affirmative action policies. Backward­ looking arguments depend on the paradigm of traditional tort cases, where a specific individual x has deprived another individual y of a specific good t through an identifiable act a, and x is required to restore y to the position y would have had, had a not occurred. But typically, preferential treatment requires that x (rather than x) restore y’ (instead of y) with a good t’ that y’ supposedly would have achieved had y not been deprived of t by x. The displacement of perpetrator (x’ for x) and victim (y’ for y) gives rise to the problem of (1) White males who are innocent of acts having caused harm nonetheless being forced to provide restitution for such acts; and (2) Blacks who were not directly harmed by those acts nonetheless becoming the princi­pal beneficiaries of restitution for those acts…. Fiscus argues that the backward-looking argument reinforces the percep­tion that preferential treatment is unfair to innocent White males, and so long as this is the case, both the courts and the public are likely to oppose strong affirmative action policies such as quotas, set-asides, and other preferential treatment policies. In contrast, Fiscus recommends that preferential treatment be justified in terms of distributive justice, which as a matter of equal protection, “requires that individuals be awarded the positions, advantages, or benefits they would have been awarded under fair conditions, that is, conditions under which rac­ist exclusion would not have precluded Blacks from attaining “their deserved proportion of the society’s important benefits.” Conversely, “distributive jus­tice also holds that individuals or groups may not claim positions, advantages, or benefits that they would not have been awarded under fair conditions. These conditions jointly prohibit White males from claiming an unreason­ able share of social benefits and protects White males from having to bear an unreasonable share of the redistributive burden… Affirmative action must be justified in terms of alternative conceptions of the purpose of legal intervention, and Sunstein recommends instead the notion of “risk management” (intended to offset increased risks faced by a group rather than compensate the injuries suffered by a particular individual) and the “principle of nonsubordination” (whereby measures are taken to reverse a situation in which an irrelevant difference has been transformed by legally sanctioned acts of the state into a social disadvantage)… …those harmed may be unable to establish a direct causal link between their injuries and the plain­ tiff’s actions. Thus, a person who develops a certain type of cancer associated with a toxin produced by a particular company might have developed that condition even in the absence of the company’s negligent behavior. At most, they can argue that the company’s actions caused an increased risk of injury, rather than any specific instance of that injury. Harms suffered in this way systematically affect certain groups with higher frequency than other groups, without it being possible to establish causal links between the injuries of specific plaintiffs and the actions of the defendant. Regulatory agencies should be designed to address harms that are the result of increased risks rather than of a discrete action. One of their principal aims should be not to compensate each injured party (and only injured parties), “but instead to deter and punish the risk-creating behavior” by redistributing social goods… The principle of nonsubordination is meant to apply to cases where the existing distribution of wealth and opportunities between groups are the result of law rather than natural attributes. The purpose of affirmative action from a forward-looking perspective should be to end social subordination and reverse the situation in which irrelevant differences have been, through social and legal structures, turned into systematic disadvantages operative in multiple spheres that diminish participation in democratic forms of life… …Because the existing distribution of benefits and burdens between Blacks and Whites and men and women is not natu­ral…and because it is in part a product of current laws and practices having discriminatory effects, it is not decisive if some Whites and men are disadvantaged as a result. A central question in the debate over affirmative action is the extent to which racial classifications are important in accomplishing the goal of relieving the subordinate status of minorities and women. Given the aim of improving safety in transportation, classifying people in terms of their race is rationally irrelevant, while classifying them in terms of their driving compe­tency, visual acuity, and maturity is essential. On the other hand, given the aim of improving health care in Black neighborhoods, classifying applicants for medical school in terms of their race is, in addition to their academic and clinical abilities, a very relevant factor. To illustrate, African Americans, Hispanics, and Native Americans make up 22 percent of the population but represent only 10 percent of entering medical students and 7 percent of practicing physicians. A number of studies have shown that underrepresented minority physicians are more likely than their majority counterparts to care for poor patients and patients of similar ethnicity. Indeed, “each ethnic group of patients was more likely to be cared for by a physician of their own ethnic background than by a physician of another ethnic background.” …language, physical identity, personal background, and experiences are relevant factors in determining the kinds of communities in which a physician will establish a practice. If this is the case, then the race of a medical school applicant would be an important factor in providing medical services to certain underrepresented communities. Thus, while there might be some purposes for which race is irrelevant, there might be other purposes in which race is important (though perhaps not necessary) for achieving the end in view. The remedy targets Blacks as a group because racially discriminatory practices were directed against Blacks as a group. … Preferential treatment programs are meant to offset the disadvantages imposed by racism so that Blacks are not forced to bear the principal costs of that error. … To condemn polices meant to correct for racial barriers as themselves erecting barriers is to ignore the difference between action and reaction, cause and effect, aggression and self-defense…. Conclusion Racism was directed against Blacks whether they were talented, average, or medi­ocre, and attenuating the effects of racism requires distributing remedies simi­larly. Affirmative action policies compensate for the harms of racism (overt and institutional) through antidiscrimination laws and preferential policies. Prohib­iting the benign use of race as a factor in the award of educational, employment and business opportunities would eliminate compensation for past and present racism and reinforce the moral validity of the status quo, with Blacks overrepre­sented among the least well off and underrepresented among the most well off. It has become popular to use affirmative action as a scapegoat for the increased vulnerability of the White working class. But it should be recognized that the civil rights revolution (in general) and affirmative action (in particu­lar) has been beneficial, not just to Blacks, but also to Whites (e.g., women, the disabled, the elderly) who otherwise would be substantially more vulnerable than they are now. Affirmative action is directed toward empowering those groups that have been adversely affected by past and present exclusionary practices. Initiatives to abolish preferential treatment would inflict a grave injustice on African Americans, for they signal a reluctance to acknowledge that the plight of African Americans is the result of institutional practices that require institutional responses. Notes on Mosley Mosley — Affirmative Action Some Terms Weak Affirmative Action: Taking steps to ensure that discrimination based on race, gender, or other illegal criteria is eliminated through legal remedies targeted at individuals. This might include: (a) Severe penalties for those who have been found guilty of discrimination (e.g. paying a fine, being fired, etc.). (b) Compensation for specific individuals who have been victims of discrimination (i.e. if an individual is shown to have been denied a job because of his or her race, then the employer may be required to give that person the job or a comparable job). (c) Oversight by an independent government agency to monitor employment practices for evidence of discrimination.   Medium Affirmative Action: In cases where applicants (either for a job or college admission) are equally qualified, preference is given to the candidate who is a member of a racial group which has historically suffered from racial discrimination. In medium affirmative action, race breaks ties. It does not mean that a less qualified candidate is hired over a more qualified candidate. In addition, medium affirmative action includes all of the protections of weak affirmative action. Medium affirmative action might also include “outreach” programs, where special effort is made to seek out qualified minority candidates, rather than simply waiting for them to apply.  Strong Affirmative Action: Giving a preference (or “special consideration”), in hiring or admissions, to members of racial groups which have historically suffered from racial discrimination, in order to achieve greater representation of those racial groups. This might include: (a) Requiring that the racial proportions of those hired/admitted are roughly the same as those in the relevant population (either local or general). Thus, if about 14% of the population is black, then it is expected that about 14% of those hired be black. This is what is often called “racial quotas”, and has been determined unconstitutional by the supreme court. (b) Giving members of certain racial groups a bonus when considering them for hiring or admission, so that their race is considered as a positive factor. This will increase their representation but does not guarantee any specific proportion of the total. This is the standard way in which AA is practiced in college admissions.  The first use of the phrase “affirmative action”, JFK 1961: [contractors using federal funds are to] “take affirmative action to ensure that applicants are employed, and employers are treated during their employment, without regard to their race, creed, color, or national origin.” In other words, don’t just assume that discrimination isn’t going on, take action to make sure that it isn’t. This certainly sounds like a call for Weak Affirmative Action (see above).   Legislative and Judicial Background FDR: Executive Order 8802 (1941) “the specific victim of discrimination be “made whole,” that is, put in the position he or she would have held were it not for the discriminatory act, including damages for lost pay and legal expenses.” Brown v. Board of Education (1954) State mandated segregation of schools (and then other publicly funded facilities) was unconstitutional. (Separate by equal (which was from Plessey v. Ferguson) is not equal.) Swann v. Charlotte-Mecklenburg (1971) Schools needed a prescribed rations of Blacks to Whites because promoting racial diversity was necessary for preparing students to live in a pluralistic society. Sort of a racial quota. Introduced “bussing.” Montgomery Bus Boycotts (mid 1950s) Rosa Parks Ended with Browder v Gayle (1956) Prompted JFK to notice what was happening: See 210   The Civil Rights Act of 1964 Mosley’s discussion here points out the need for the CRA. Here are some highlights of what the CRA states: Public Accommodations: All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation on the ground of race, color, religion, or national origin. Desegregation of Public Education: “Desegregation” means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but “desegregation” shall not mean the assignment of students to public schools in order to overcome racial imbalance. Nondiscrimination in Federally Assisted Programmes: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Discrimination Because of Race, Colour, Religion, Sex, or National Origin It shall be an unlawful employment practice for an employer– (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.     Conceptual Issues Governments and societies have a responsibility to rectify liabilities they incur. “One such liability derives from past and present unjust exclusionary acts depriving minorities and women of opportunities and amenities made available to other groups.” (210) There are two ways to do this. In this section, he addresses Backward Looking justifications for Affirmative Action [Backward-Looking Justifications of Affirmative Action] “Demand affirmative action as a matter of corrective justice, where paradigmatically the harmdoer is to make restitution to the harmed so as to put the harmed in a position that the harmed would have occupied has the harm not occurred.” (210-211) This raises the issue of restitution as morally obligatory Let’s look at his X,Y,Z, and F examples. PROBLEM: But does now hiring Y instead of Z for a job that Z is, in fact, more qualified for discriminate against Z? We can’t exclude Z1 purely on the basis of race, right? SOLUTION: F is actually free to offer the position to the public now – it’s already owed to Y. See Thomson quote (211-212) So Blacks are owed something because they have suffered from discrimination in the past. What about White Males? They have been privileged by “unjust enrichment.” Redistributing opportunities will come as a harsh blow to them perhaps, but since they neither deserved not were entitled to those benefits they OUGHT not feel resentment (even though they MIGHT.) It’s extra burdensome to the current generation of white males because the white males who benefited most from the unjust enricehemtn are protected by Title VII (the protection of senority) When F (the Gov) egregiously discriminates it causes more harm than that done to specific individuals (specific v latent effects.) The specific effect was that Y didn’t get the job. The latent effect was that the entire system became skewed against Blacks. (see 213) But do we need strong AA to rectify this? What percentage of Blacks in a work place is the percentage that should have/would have been there were it not for the initial discrimination? Mosley also argues that Strong AA is a way of correcting the dispositional effect of discrimination. If an employer is known to have discriminated against blacks, then many blacks will simply not apply at all, adding considerably to the discriminatory effect. Using Strong AA sends a clear message that the positions are now open to blacks. “…given the impossibility of determining what level of representation blacks would have achieved were it not for racist discrimination, the assumption of proportional representation is the only fair assumption to make. This is not to argue that blacks should be maintained in such positions, but their contrived exclusion merits an equally contrived rectification.” (213.) This claim is open to the response that “two wrongs don’t make a right”. Of course, it would be question begging to simply assert that Strong AA is wrong. But it is equally question-begging to assert that a “contrived rectification” of the sort Mosley describes is just.   Forward –Looking Justifications of Affirmative Action Some, like Ronald Ficus, claim that backward look rectifications put the burden on individuals who weren’t the beneficiaries of the unjust practices. See the Tort, X,Y discussion on 214. Instead Ficus suggest we look forward using distributive justice to ensure a fair and proportionate allocation of opportunities, regardless of how things “were in the past.” So White males won’t get an unjust share, but White male won’t have to bear an unjust burden. Just look at population percentages. (At this point Mosley points out lots of different sectors to show us how things actually play out.) “The question should not be whether White males are innocent or guilty of racism or sexism, but whether they have a right to inflated odds of obtaining benefits relative to minorities and women. A White male is innocent only up to the point where he takes advantage of ‘a benefit he would not qualify for without the accumulated effects of racism. At that point he becomes an accomplice in, and a beneficiary of, society’s racism. He becomes the recipient of stolen goods…’” (216.) Other, like Cass Sunstein, point out that Ficus’s model is ridiculous – we can’t know what position the disenfranchised would have been in, so it’s ridiculous to attempt to promote that. Instead, Sunstein raises the ideas of: risk management offset risks based by a group rather than compensate injuries See 217 the principle of nonsubordination measures are taken to reverse a situation in which an irrelevant difference has been transformed by legally sanctioned acts of the state into a social disadvantage See 217 Mosley then turns to whether racial classifications are important (he seems to think they are.)   Conclusion Read this carefully — it’s a nice summary. Pojman’s “Affirmative Action: Con” Excerpts “Affirmative Action: Con” Excerpts by Louis P. Pojman In this essay I set forth nine arguments against Strong Affirmative Action, which I define as preferential treatment, discriminating in favor of members of under-represented groups, which have been treated unjustly in the past, against innocent people. I distinguish this from Weak Affirmative Action, which simply seeks to promote equal opportunity to the goods and offices of a society. I do not argue against this policy. I argue against Strong Affirmative Action, attempting to show that two wrongs don’t make a right. This form of Affirmative Action, as it is applied against White males, is both racist and sexist. Hardly a week goes by but that the subject of Affirmative Action does not come up. Whether in the form of preferential hiring, non-traditional casting, quotas, “goals and time tables,” minority scholarships, race-norming, reverse discrimination, or employment of members of underutilized groups, the issue confronts us as a terribly perplexing problem. Affirmative action was one of the issues that divided the Democratic and Republican parties during the 1996 election, the Democrats supporting it (“Mend it don’t end it”) and the Republicans opposing it (“affirmative action is reverse racism”). During the last general election (November 7, 1996) California voters by a 55% to 45% vote approved Proposition 209 (called the “California Civil Rights Initiative”) which made it illegal to discriminate on the basis of race or gender, hence ending Affirmative Action in public institutions in California. The Supreme Court recently refused to rule on the appeal, thus leaving it to the individual states to decide how they will deal with this issue. Both sides have reorganized for a renewed battle. At the same time, the European Union’s High Court of Justice in Luxembourg has recently approved Affirmative Action programs giving women preferential treatment in the 15 European Union countries (Nov. 11, 1997). Let us agree that despite the evidences of a booming economy, the poor are suffering grievously, with children being born into desperate material and psychological poverty, for whom the ideal of “equal opportunity for all” is a cruel joke. Many feel that the federal government has abandoned its guarantee to provide the minimum necessities for each American, so that the pace of this tragedy that seems to be worsening daily. Add to this, the fact that in our country African-Americans have a legacy of slavery and unjust discrimination to contend with, and we have the makings of an inferno, and, perhaps, in the worse case scenario, the downfall of a nation. What is the answer to our national problem? Is it increased welfare? more job training? more support for education? required licencing of parents to have children? negative income tax? more support for families or for mothers with small children? All of these have merit and should be part of the national debate. But, my thesis is, however tragic the situation may be (and we may disagree on just how tragic it is), one policy is not a legitimate part of the solution and that is reverse, unjust discrimination against young white males. Strong Affirmative Action, which implicitly advocates reverse discrimination, while, no doubt, well intentioned, is morally heinous, asserting, by implication, that two wrongs make a right. The Two Wrongs Make a Right Thesis goes like this: Because some Whites once enslaved some Blacks, the decedents of those slaves, some of whom may now enjoy high incomes and social status, have a right to opportunities and offices over better qualified Whites who had nothing to do with either slavery or the oppression of Blacks, and who may even have suffered hardship comparable to that of poor Blacks. In addition, Strong Affirmative Action creates a new Hierarchy of the Oppressed: Blacks get primary preferential treatment, women second, Native Americans third, Hispanics fourth, Handicapped fifth, and Asians sixth and so on until White males, no matter how needy or well qualified, must accept the left-overs. Naturally, combinations of oppressed classes (e.g., a one eyed, Black Hispanic female) trump all single classifications. The equal protection clause of the Fourteenth Amendment becomes reinterpreted as “Equal protection for all equals, but some equals are more equal than others.” Before analyzing arguments concerning Affirmative Action, I must define my terms. By Weak Affirmative Action I mean policies that will increase the opportunities of disadvantaged people to attain social goods and offices. It includes the dismantling of segregated institutions, widespread advertisement to groups not previously represented in certain privileged positions, special scholarships for the disadvantaged classes (e.g., the poor, regardless of race or gender), and even using diversity or under representation of groups or history of past discrimination as a tie breaker when candidates for these goods and offices are relatively equal. The goal of Weak Affirmative Action is equal opportunity to compete, not equal results. We seek to provide each citizen regardless of race or gender a fair chance to the most favored positions in society. There is no more moral requirement to guarantee that 12% of professors are Black than to guarantee that 85% of the players in the National Basketball Association are White. By Strong Affirmative Action I mean preferential treatment on the basis of race, ethnicity or gender (or some other morally irrelevant criterion), discriminating in favor of under-represented groups against over-represented groups, aiming at roughly equal results. Strong Affirmative Action is reverse discrimination. It says it is right to do wrong to correct a wrong. It is the policy that is currently being promoted under the name of Affirmative Action, so it I will use that term or “AA” for short throughout this essay to stand for this version of affirmative action. I will not argue for or against the principle of Weak Affirmative Action. Indeed, I think it has some moral weight. Strong Affirmative Action has none, or so I will argue. In what follows I will mainly concentrate on Affirmative Action policies with regard to race, but the arguments can be extended to cover ethnicity and gender. I think that if a case for Affirmative Action can be made it will be as a corrective to racial oppression. I will examine nine arguments regarding Affirmative Action. The first six will be negative, attempting to show that the best arguments for Affirmative Action fail. The last three will be positive arguments for policies opposing Affirmative Action… Arguments Against Affirmative Action Affirmative Action Requires Discrimination Against a Different Group Weak Affirmative Action weakly discriminates against new minorities, mostly innocent young white males, and Strong Affirmative Action strongly discriminates against these new minorities. As I argued in I. 4, this discrimination is unwarranted, since, even if some compensation to blacks were indicated, it would be unfair to make innocent white males bear the whole brunt of the payments. Recently I had this experience. I knew a brilliant philosopher, with outstanding publications in first level journals, who was having difficulty getting a tenure-track position. For the first time in my life I offered to make a phone call on his behalf to a university to which he had applied. When I got the Chair of the Search Committee, he offered that the committee was under instructions from the Administration to hire a woman or a Black. They had one of each on their short-list, so they weren’t even considering the applications of White males. At my urging he retrieved my friend’s file, and said, “This fellow looks far superior to the two candidates we’re interviewing, but there’s nothing I can do about it.” Cases like this come to my attention regularly. In fact, it is poor white youth who become the new pariahs on the job market. The children of the wealthy have no trouble getting into the best private grammar schools and, on the basis of superior early education, into the best universities, graduate schools, managerial and professional positions. Affirmative Action simply shifts injustice, setting Blacks, Hispanics, Native Americans, Asians and women against young white males, especially ethnic and poor white males. It makes no more sense to discriminate in favor of a rich Black or female who had the opportunity of the best family and education available against a poor White, than it does to discriminate in favor of White males against Blacks or women. It does little to rectify the goal of providing equal opportunity to all. At the end of his essay supporting Affirmative Action, Albert Mosley points out that other groups besides Blacks have been benefitted by Affirmative Action, “women, the disabled, the elderly.”16 He’s correct in including the elderly, for through powerful lobbies, such as the AARP, they do get special benefits including medicare and may sue on the grounds of being discriminated against due to Agism, prejudice against older people. Might this not be a reason to reconsider Affirmative Action? Consider the sheer rough percentages of those who qualify for Affirmative Action programs. GROUP PERCENTAGE1. Women 52%2. Blacks 12%3. Hispanics 9%4. Native Americans 2%5. Asians 4%6. Physically Disabled 10%7. Welfare recipients 6%8. The Elderly 25% (est. Adults over 60)9. Italians (in New York City) 3%Totals 123% The elderly can sue on the grounds of Agism, receive entitlements in terms of Social Security and Medicare, and have the AARP lobbying on their behalf. Recently, it has been proposed that homosexuals be included in oppressed groups deserving Affirmative Action.17 At Northeastern University in 1996 the faculty governing body voted to grant homosexuals Affirmative Action status at this university. How many more percentage points would this add? Several authors have advocated putting all poor people on the list.18 And if we took handicaps seriously would we not add ugly people, obese people, and, especially, short people, for which there is ample evidence of discrimination? How about left-handed people (about 9% of the population) – they can’t play short-stop of third base and have to put up with a right-handedly biased world. The only group not the list is that of White males. Are they, especially healthy, middle class young White males, becoming the new “oppressed class”? Should we add them to our list? Respect for persons entails that we treat each person as an end in him or herself, not simply as a means to be used for social purposes. What is wrong about discrimination against Blacks is that it fails to treat Black people as individuals, judging them instead by their skin color not their merit. What is wrong about discrimination against women is that it fails to treat them as individuals, judging them by their gender, not their merit. What is equally wrong about Affirmative Action is that it fails to treat White males with dignity as individuals, judging them by both their race and gender, instead of their merit. Present Affirmative Action is both racist and sexist. Affirmative Action Encourages Mediocrity and Incompetence A few years ago Jesse Jackson joined protesters at Harvard Law School in demanding that the Law School faculty hire black women. Jackson dismissed Dean of the Law School, Robert C. Clark’s standard of choosing the best qualified person for the job as “Cultural anemia.” “We cannot just define who is qualified in the most narrow vertical academic terms,” he said. “Most people in the world are yellow, brown, black, poor, non-Christian and don’t speak English, and they can’t wait for some white males with archaic rules to appraise them.”19 It might be noted that if Jackson is correct about the depth of cultural decadence at Harvard, blacks might be well advised to form and support their own more vital law schools and leave places like Harvard to their archaism. At several universities, the administration has forced departments to hire members of minorities even when far superior candidates were available. Shortly after obtaining my Ph D in the late 70’s I was mistakenly identified as a black philosopher (I had a civil rights record and was once a black studies major) and was flown to a major university, only to be rejected for a more qualified candidate when it discovered that I was white. Stories of the bad effects of Affirmative Action abound. The philosopher Sidney Hook writes that “At one Ivy League university, representatives of the Regional HEW demanded an explanation of why there were no women or minority students in the Graduate Department of Religious Studies. They were told that a reading of knowledge of Hebrew and Greek was presupposed. Whereupon the representatives of HEW advised orally: ‘Then end those old fashioned programs that require irrelevant languages. And start up programs on relevant things which minority group students can study without learning languages.'”20 Nicholas Capaldi notes that the staff of HEW itself was one-half women, three-fifths members of minorities, and one-half black – a clear case of racial over representation. In 1972 officials at Stanford University discovered a proposal for the government to monitor curriculum in higher education: the “Summary Statement…Sex Discrimination Proposed HEW Regulation to Effectuate Title IX of the Education Amendment of 1972” to “establish and use internal procedure for reviewing curricula, designed both to ensure that they do not reflect discrimination on the basis of sex and to resolve complaints concerning allegations of such discrimination, pursuant to procedural standards to be prescribed by the Director of the office of Civil Rights.” Fortunately, Secretary of HEW Caspar Weinberger discovered the intrusion and assured Stanford University that he would never approve of it.21 Government programs of enforced preferential treatment tend to appeal to the lowest possible common denominator. Witness the 1974 HEW Revised Order No. 14 on Affirmative Action expectations for preferential hiring: “Neither minorities nor female employees should be required to possess higher qualifications than those of the lowest qualified incumbents.” Furthermore, no test may be given to candidates unless it is proved to be relevant to the job. No standard or criteria which have, by intent or effect, worked to exclude women or minorities as a class can be utilized, unless the institution can demonstrate the necessity of such standard to the performance of the job in question. Whenever a validity study is called for…the user should include … an investigation of suitable alternative selection procedures and suitable alternative methods of using the selection procedure which have as little adverse impact as possible …. Whenever the user is shown an alternative selection procedure with evidence of less adverse impact and substantial evidence of validity for the same job in similar circumstances, the user should investigate it to determine the appropriateness of using or validating it in accord with these guidelines. At the same time Americans are wondering why standards in our country are falling and the Japanese and Koreans are getting ahead. Affirmative Action with its twin idols, Sufficiency and Diversity, is the enemy of excellence. I will develop this thought in the next section. An Argument from the Principle of MeritTraditionally, we have believed that the highest positions in society should be awarded to those who are best qualified. The Koran states that “A ruler who appoints any man to an office, when there is in his dominion another man better qualified for it, sins against God and against the State”. Rewarding excellence both seems just to the individuals in the competition and makes for efficiency. Note that one of the most successful acts of racial integration, the Brooklyn Dodger’s recruitment of Jackie Robinson in the late 40s, was done in just this way, according to merit. If Robinson had been brought into the major league as a mediocre player or had batted .200 he would have been scorned and sent back to the minors where he belonged. As I mentioned earlier, merit is not an absolute value, but there is are strong prima facie reasons for awarding positions on its basis, and it should enjoy a weighty presumption in our social practices. In a celebrated article Ronald Dworkin says that “Bakke had no case” because society did not owe Bakke anything. That may be, but then why does it owe anyone anything? Dworkin puts the matter in Utility terms, but if that is the case, society may owe Bakke a place at the University of California/Davis, for it seems a reasonable rule-utilitarian principle that achievement should be rewarded in society. We generally want the best to have the best positions, the best qualified candidate to win the political office, the most brilliant and competent scientist to be chosen for the most challenging research project, the best qualified pilots to become commercial pilots, only the best soldiers to become generals. Only when little is at stake do we weaken the standards and content ourselves with sufficiency (rather than excellence) – there are plenty of jobs where “sufficiency” rather than excellence is required. Perhaps we have even come to feel that medicine or law or university professorships are so routine that they can be performed by minimally qualified people – in which case AA has a place. Note! no one is calling for quotas or proportional representation of underutilized groups in the National Basketball Association where blacks make up 80% of the players. But, surely, if merit and merit alone reigns in sports, should it not be valued at least as much in education and industry? The case for meritocracy has two pillars. One pillar is a deontological argument which holds that we ought to treat people as ends and not merely means. By giving people what they deserve as individuals, rather than as members of groups we show respect for their inherent worth. If you and I take a test, and you get 95% of the answers correct and I only get 50% correct, it would be unfair to you to give both of us the same grade, say an A, and even more unfair to give me a higher grade A+ than your B+. Although I have heard cases where teachers have been instructed to “race norm” in grading (giving Blacks and Hispanics higher grades for the same numerical scores), most proponents of Affirmative Action stop short of advocating such a practice. But, I would ask them, what’s really the difference between taking the overall average of a White and a Black and “race norming” it? If teachers shouldn’t do it, why should administrators? The second pillar for meritocracy is utilitarian. In the end, we will be better off by honoring excellence. We want the best leaders, teachers, policemen, physicians, generals, lawyers, and airplane pilots that we can possibly produce in society. So our program should be to promote equal opportunity, as much as is feasible in a free market economy, and reward people according to their individual merit. ConclusionLet me sum up my discussion. The goal of the Civil Rights movement and of moral people everywhere has been justice for all, including equal opportunity. The question is: how best to get there. Civil Rights legislation removed the legal barriers, opening the way towards equal opportunity, but it did not tackle the deeper causes that produce differential results. Weak Affirmative Action aims at encouraging minorities in striving for the highest positions without unduly jeopardizing the rights of majorities. The problem of Weak Affirmative Action is that it easily slides into Strong Affirmative Action where quotas, “goals and time-tables,” “equal results,”–in a word–reverse discrimination prevails and forced onto groups, thus promoting mediocrity, inefficiency, and resentment. Furthermore, Affirmative Action aims at the higher levels of society – universities and skilled jobs, but if we want to improve our society, the best way to do it is to concentrate on families, children, early education, and the like, so all are prepared to avail themselves of opportunity. Affirmative Action, on the one hand, is too much, too soon and on the other hand, too little, too late.In addition to the arguments I have offered, Affirmative Action, rather than unite people of good will in the common cause of justice, tends to balkanize us into segregation-thinking. Professor Derrick Bell of Harvard Law School recently said that the African American Supreme Court Judge Clarence Thomas, in his opposition to Affirmative Action “doesn’t think black.”23 Does Bell really claim that there is a standard and proper “Black” (and presumably a White) way of thinking? Ideologues like Bell, whether radical Blacks like himself, or Nazis who advocate “think Aryan,” both represent the same thing: cynicism about rational debate, the very antithesis of the quest for impartial truth and justice. People who have believe in reason to resolve our differences will oppose this kind of balkanization of the races. Martin Luther said that humanity is like a man mounting a horse who always tends to fall off on the other side of the horse. This seems to be the case with Affirmative Action. Attempting to redress the discriminatory iniquities of our history, our well-intentioned social engineers now engage in new forms of discriminatory iniquity and thereby think that they have successfully mounted the horse of racial harmony. They ha Notes on Pojman Louis Pojman “The Case Against Affirmative Action”    “The two wrongs make a right theses goes like this: because some whites once enslaved some blacks, the descendants of those slaves (some of whom now may enjoy high incomes and social status have a right to opportunities and offices over better qualified whites who had nothing to do with either slavery or the oppression of blacks (and who may have even suffered hardship comparable to that of poor blacks.)” (221)   “Strong affirmative action creates a new Hierarchy of the Oppressed: blacks get primary preferential treatment, women second, Native Americans third, Hispanics fourth, handicapped fifth and Asians sixth and so on until white males, no matter how needy or well qualified, must accept the leftovers…” (222)     The Compensation Argument AA doesn’t sit well with the ordinary concept of compensation, since that involves specific wronged individuals being compensated without harm to third parties. “Still, there may be something intuitively compelling about compensating members of an oppressed group who are minimally qualified.” (223) BUT: there are three prima facie reasons for sticking with meritocracy that must first be overridden (1) treating people according to their merits respects them as persons rather than as means to social ends (a Kantian principle) (2) society has given people expectations that they will be awarded for achieving certain levels of excellence Comment: This reason seems especially weak. The mere fact that people expect something does not justify giving it to them. (3) filling the most important positions with the best qualified is the best way to ensure efficiency in job-related areas and in society in general (an appeal to utility)   The Argument for Compensation From Those Who Innocently Benefitted From Past Injustice  Pojman summarizes the argument in his own words: “Young white males as innocent beneficiaries of unjust discrimination against blacks and women have no grounds for complaint when society seeks to level the tilted field. They may be innocent of oppressing blacks, other minorities, and women, but they have unjustly benefited from that oppression or discrimination. So it is perfectly proper that less qualified women and blacks be hired before them”. (224) Pojman responds: “If A steals B’s car and wrecks it, A as an obligation to compensate B for the stolen car, but his son has no obligation to compensate B. Furthermore , if A dies or disappears, he has no moral right to claim that society compensate him for the stolen car…Sometimes a wrong cannot be compensated, and we just have to make the best of an imperfect world…” (224)   The Diversity Argument   Diversity has social utility: being exposed to others of different backgrounds can broaden your horizons and make you more tolerant and able to live and work with others. This is one of the chief justifications for Strong AA at college campuses. Some colleges argue that diversity is important for achieving the education mission of the school, and so Strong AA is justified in achieving diversity. Pojman: “…while we can admit the value of diversity, it hardly seems adequate to override the moral requirement to treat each person with equal respect…furthermore, unless those hired are highly qualified, the diversity factor threatens to become a fetish.” (224)   “On the other hand, if a black policeman, though lacking some of the formal skills of white policemen, really is able to do a better job in the black community, this might constitute a case of merit, not affirmative action.”(225) In other words, the “better qualified” white may not be better qualified in the ways that count. Test scores and other formal criteria or not always the most relevant to the job. Hiring a “less qualified” black in such a case is not really AA, but is a case of hiring the best person for the job, period. Thus, Pojman might agree to some of what is called AA, on the grounds that it is really not AA at all.     Two Arguments Against Strong AA   AA Requires Discrimination Against a Different Group “…this discrimination [of Strong AA] is unwarranted, since, even if some compensation to blacks were indicated, it would be unfair to make innocent white males bear the whole brunt of the payments. …it is poor white youth who become the new pariahs on the job market. …Affirmative Action simply shifts injustice, setting Blacks, Hispanics, Native Americans, Asians and women against young white males, especially ethnic and poor white males.” (228) Respect for persons entails that we treat each person as an end in him or herself, not simply as a means to be used for social purposes. What is wrong about discrimination against Blacks is that it fails to treat Black people as individuals, judging them instead by their skin color not their merit. What is wrong about discrimination against women is that it fails to treat them as individuals, judging them by their gender, not their merit. What is equally wrong about Affirmative Action is that it fails to treat White males with dignity as individuals, judging them by both their race and gender, instead of their merit.     An Argument from the Principle of Merit   “Rewarding excellence both seems just to the individuals in the competition and makes for efficiency. Note that one of the most successful acts of racial integration, the Brooklyn Dodger’s recruitment of Jackie Robinson in the late 40s, was done in just this way, according to merit. If Robinson had been brought into the major league as a mediocre player or had batted .200 he would have been scorned and sent back to the minors where he belonged.” (228) … “In the end, we will be better off by honoring excellence. We want the best leaders, teachers, policemen, physicians, generals, lawyers, and airplane pilots that we can possibly produce in society. So our program should be to promote equal opportunity, as much as is feasible in a free market economy, and reward people according to their individual merit.”(229)